Jaime Zorrilla is an IP Innovation Clinic Fellow and a 2L JD/MBA Student at Osgoode Hall Law School & the Schulich School of Business. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

After inviting public and stakeholder feedback in 2020, the Ontario Government commissioned the . The Report found significant deficits in IP related outcomes. While the Ontario government has introduced courses to raise IP awareness, making these courses at least partially mandatory might better address the Panel’s Recommendations.

The report identified several issues in Ontario’s attempt to become a hub for IP creation. Further, of the patents that are assigned to Canadian inventors, a significant percentage are subsequently assigned to foreign entities. ��

So far, the province has taken meaningful steps to address these deficits in education and governance contexts. Notably, . The Ontario Government has worked with the University of Toronto and the Centre for International Governance Innovation to launch . Missing, however, is the second part of the Expert Panel’s recommendations – that engaging with these modules or curricula be “”.

On the one hand, requiring founders to take a course can delay and complicate the launch of a successful venture. Failing a module could play a detrimental role in determining whether a particular venture gets access to additional resources from universities, accelerators or even funding partners. Additionally, the length of such a module could dissuade innovators from seeking out resources or help from these institutions.

Still, the potential payoffs are significant. The report identified benefits in proliferating IP in the province:

• Canadian small/medium enterprises (SMEs) holding registered IP rights are .
• SMEs that are aware of IP at all are .

The easiest way to promote IP awareness would be ensuring the module is simple to take; however, a course which is too rudimentary may prevent innovators and SMEs from being well appraised to best spot opportunities to commercialize new IP within their own businesses.

A two-pronged strategy might be preferable. Requiring that SMEs who receive government funding from grants or loans or who participate in commercialization aides such as accelerators or university programs take the existing module could meaningfully promote a baseline level of IP awareness. In addition, the Ontario Government could promote even greater familiarity with IP concepts by setting and enforcing targets for completion of levels two and three of these modules, potentially contingent on some degree of support by the province and its related agencies. The module established at the University of Toronto has, for example, developed additional modules on the value of various types of IP and the process of actually applying for a patent.

The latest development from the Expert Panel’s Report came in March when based in no small part from a recommendation by the panel’s Report. The new agency has so far identified IP education and awareness as one of its priorities. By working alone or with the province, implementing some form of mandatory training can go a long way to promoting IP awareness among inventors.

The post Promoting IP Awareness Through Mandatory Modules appeared first on IPOsgoode.

Serena Nath is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

In April 2022, the federal government released its . This budget proposal included proposed changes to Canada’s . One of the proposed changes aimed to reform legislation regarding educational uses of copyright. In particular, the federal government pledged to amend the Copyright Act to protect and ensure the longevity of the educational publishing industry.

Support for the Proposed Amendments

Many in the field of education publishing saw these proposed changes as the holy grail they have desperately been searching for since the 2012 amendments to the Copyright Act which . The 2012 amendments resulted in a loophole that allowed for widespread photocopying at schools and post-secondary institutions without signing and paying for licences for copied educational materials. This resulted in losses of approximately $200 million in income for the Canadian writing and publishing industry, which effectively destroyed the industry. Thus, when the proposed federal budget announced the government’s urgent intentions to create a sustainable educational publishing industry, it is understandable why . Additionally, because of the lack of payment to the educational publishing industry, there has been a to develop new technologies in this industry, particularly regarding digital educational materials. Thus, many are hopeful that the proposed protection to the educational publishing industry will also incentivize the industry to now innovate to keep up with current times and changing curriculum.

Opposition for the Proposed Amendments

On the other hand, the proposed changes to the Canadian Copyright Act have also faced criticism from Canadian intellectual property scholars. In an addressed to the Federal government, 25 intellectual property scholars from across Canada have voiced their concerns regarding enacting these changes under the federal budget and instead urge the Federal government to enact any changes via the regular legislative process. The group argued that any changes may “throw off the balance between copyright holders and user rights, particularly in education.” Additionally, the group cautions against believing the story regarding lost profits from the Canadian educational publishing industry due to the 2012 amendments, and instead asked the government to review “compelling evidence” before taking any action. Thirdly, the group argued that if amendments proceed through the federal budget, they may be inconsistent with constitutional principles. The group was concerned that the pledged amendments would exceed Parliament’s legislative authority over copyright law and may intrude into the education sector, which is under provincial jurisdiction. Finally, they also warned that enacting the amending legislation through the federal budget is likely to result in a lack of review and democratic debate over the legislation.

Reconciling the Two Views

In my opinion, I can understand the scholars’ views of wanting to ensure constitutional compatibility, proper review of legislation, and a democratic debate. However, I also recognize the sense of urgency from the Canadian educational publishing industry. I believe that the publishing industry may be on the verge of a timely death, with many content creators not getting paid and the education system potentially suffering due to a lack of innovation in the educational publishing community. If any amendments were to occur via the regular legislative process, this may delay any detrimental effects to the educational publishing industry. It is unclear how this balance can be achieved, but I welcome any suggestions, thoughts and fresh perspectives in the comments section.

The post Proposed Amendments to the Canadian Copyright Act: A Much Needed or Rushed Saviour for the Educational Publishing Industry? appeared first on IPOsgoode.

On June 28, 2021, the College of Patent Agents and Trademark Agents (CPATA) was established and began operating to regulate patent and trademark agents. The new regulations, the , were implemented “to regulate patent agents and trademark agents in the public interest, in order to enhance the public’s ability to secure the rights provided for under the Patent Act and the Trademarks Act” as stated in the .�� According to the CPATA , the college will set competency standards for licensees, require trainee agents to work with an experienced agent for two years, and require agents to pass a competency exam. The CPATA also sets and enforces ethical standards for agents and will be implementing a that states principles to guide all agents. Principles enumerated in the Code of Professional Conduct include a duty to be competent, a duty to preserve confidences and secrets, a duty to not act if there is a substantial risk of a conflict of interest, and a duty to be honest and candid when advising a client.

Many have praised the establishment of the CPATA, highlighting improvements in standardization and transparency. The CPATA, like other colleges, is tasked with protecting the public interest by ensuring members are held accountable. Establishing an appropriate complaint, inquiry, and discipline process is essential for fulfilling this mandate. The CPATA website includes both an informal resolution option, the Conduct Inquiry Form, as well as a complaint option. Both forms allow the public to easily submit information about the circumstances and agent involved in their inquiry or complaint to the CPATA. The Conduct Inquiry Form, as described by CPATA, can be “the best and most efficient way to address questions or concerns about an agent’s professional conduct … rather than by filing a complaint.” At the moment, the two forms look remarkably similar, but the states that the “early resolution of conduct inquiries is focused on restoring relationships and trust ….” The policy lists the assessment options and follow-up actions the Registrar may invoke to resolve the matter. The Registrar will first assess if the inquiry warrants further action, and if necessary, work to support the licensee to rectify the situation in an appropriate manner. While the CPATA website does not currently include investigation and discipline policies, the informal inquiry process appears promising. The swift resolution of minor inquiries is key to allowing the Registrar to focus on issues that warrant significant attention and ensures that the public can be satisfied by a fast and efficient inquiry process for issues that they need resolved quickly. Consolidating the inquiry and complaint process to an easy one-stop-shop for the public will help foster trust in the profession.

Notwithstanding the improvements to standardization and transparency, the implementation of the CPATA regulations was . Sections 5 and 9 of the regulations require that patent and trademark agents, respectively, reside in Canada. This could eliminate some American agents from filing in Canada and potentially, thanks to a reciprocity treaty between Canada and the US, lead to Canadian agents losing their right to file with the USPTO. Dual trained agents could potentially face the reality of needing to hire an American counterpart for filing with the USPTO, which could lead to increased costs that would ultimately be passed along to clients and delays that could frustrate the patent and trademark processes further. Improving the Canadian IP ecosystem may be the goal, but the residency requirement could cost financially desperate clients even more, and potentially cost Canadian firms business if clients decide to go directly to American agents. Balancing the improvement of the Canadian IP ecosystem with maintaining low costs for clients and business thriving for agents is difficult; the Government is faced with an unprecedented IP ecosystem problem. While the implementation of the CPATA will hopefully increase the standard of service that agents provide to clients and ensure that clients have a transparent recourse process when they feel that service does not meet the CPATA standard, the potential cost to clients and lawyers may ultimately prove to further exacerbate Canada’s IP retention problem.

The post The Government of Canada establishes the College of Patent Agents and Trademark Agents appeared first on IPOsgoode.

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Photocopying classroom materials in a K-12 public school system may have seemed harmless and benign before the 2012 Supreme Court of Canada case, . The decision reframes traditional teaching pedagogies by considering the artist and owner rights under copyright law. In doing so, I saw an opportunity to compile a list of resources for educators to make informed decisions about how they use and distribute learning materials (located at the end of this article).

Countless teachers throughout my K-12 years printed and distributed excerpts from a short story or a news article outside of our textbooks that held the most evocative paragraphs for pre-reading and open discussion. Other times, we looked at diagrams from an older edition of a textbook that were “much better for the purposes of our class.” While working as a tutor, I often collected scans of creative math problems from various textbooks.

Despite its benefits, copying materials can present consequences for the content’s owners, artists, and publishers. As a copyright collective, made royalty agreements during the years of 1991-1997 with all Canadian provinces and territories, except Quebec (which has its own collective, ), permitting use of copyright-protected content in primary and secondary schools on a per-student basis. These agreements were slated for renewal in 2004, during which Access Copyright sought to restructure the royalty system to reflect the quantity and extent of photocopies made in schools. Four different categories of usage arose from an assessment of school photocopying habits. The one in this case, Category 4, comprised of photocopying instances where teachers would assign readings from materials outside the textbook.

Access Copyright argued that Category 4 circumstances were not covered under the fair dealing exceptions and thus subject to tariffs. The Copyright Board agreed, claiming that despite the permissible use of the photocopied materials for educational purposes, the use was not fair and so royalties needed to be paid. A series of appeals regarding the definition of fairness ultimately led the case to the Supreme Court.

What constitutes “fair” dealing? The landmark 2004 SCC case, [CCH] defined the tests for fair dealing. It is the potential copier’s responsibility to ensure that their use passes the tests. As Abella J. summarizes in , fairness is assessed considering the “purpose, character, and amount of dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.” According to the , copies made without a student’s request for access do not fall under the permissible “private study” purpose. Consequently, copies made by teachers for the purposes of in-class instruction, pre-readings, and supplementary materials may be considered infringements of copyright. Likewise, I probably also would need to pay royalties for my small collection of math problems and diagrams.

In a 5/4 split, the SCC ruled in favour of educational institutions. , Abella J. contended that a teacher’s goal of instruction—facilitating the education of their students—was necessarily “symbiotic” with students’ studying. She took issue with how the Copyright Board misapplied other factors of the CCH tests, which arbitrarily placed educator copying habits in competition with the textbook market. She also pointed out the possibility of schools being doubly charged by Access Copyright, first upon purchase of the original work, and again upon copying. Note, was a unanimous SCC decision that reaffirmed Justice Abella’s emphasis on end-user considerations in a post-secondary setting.

Where do these cases leave Canadian educators now? They may continue to teach using copyright-protected materials, and are not required to destroy any copies by shredding them en masse or, theatrically, igniting a large pyre.

Overall, Alberta (Education) v Access Copyright serves as a useful reminder in understanding the legal framework to use original works. Below are several accessible resources that may also inform one’s judgement of fairness and fair dealing, as well as some interesting “further reading”.

In particular, the is a fantastic Canadian resource that can guide educators’ decision-making and reflection processes for the materials in question. It also points out any citation requirements (e.g., author/artist/owner name, title) and/or digital safeguards necessary to limit access to the material.

Further Reading:

Dr. Meera Nair's interesting take on the importance of copyright education for educators in classrooms and the promotion of creative thought:

IPilogue’s Sabrina Macklai writes about the recent 2021 SCC decision regarding post-secondary fair dealing in �첥��Ƶ v Access Copyright:

Council of Ministers of Education Canada’s resources for teachers:

Fair Dealing Canada:

Access Copyright’s information and services tab for educators:

Canadian Association of Research Libraries’ Resource Library’s copyright open educational modules for university instructors and staff:

Osgoode Hall’s Professor Giuseppina D’Agostino’s comparative analysis of Canadian, UK, and American fair use/dealing:

The post Revisiting Alberta v Access Copyright: Resources for K-12 Educators in Canada appeared first on IPOsgoode.

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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

On July 30, the Supreme Court of Canada released their much-anticipated judgement in [�첥��Ƶ]. The unanimous decision, written by Justice Abella, endorses several past Supreme Court judgements including and . Perhaps one of the most important copyright decisions since the 2012 ‘’ cases, �첥��Ƶ reflects the Supreme Court’s intention to develop Canadian copyright law in a way that maintains a balance between users’ and creators’ rights.

Background

Historically, Canadian educational institutions negotiated licence agreements with copyright collectives Access Copyright and Copibec to fulfill their copying needs within the collectives’ repertoires. In 2010, Access Copyright sought the Copyright Board’s approval for a new proposed tariff for post-secondary education institutions of a flat fee of $45 per full-time university student and $35 per full-time college student per year. This was a drastic increase from the fees stipulated in the 1994 to 2010 licence agreement between Access Copyright and post-secondary institutions. On December 23, 2010, the Copyright Board granted Access Copyright an interim tariff at the rate of $3.38 per full-time student and $0.10 per page for course packs, receiving . In anticipation of the upcoming academic session in July of 2011, �첥��Ƶ chose to “opt out” of Access Copyright’s licensing agreement and rely on alternative means, particularly the “educational purpose” under the , to continue reproducing copyrighted works for their students. Like with most educational and library institutions, �첥��Ƶ published internal “Fair Dealing Guidelines” that interpret section 29 to help York faculty and staff comply with the law. Access Copyright subsequently sued for copyright infringement. York then counterclaimed and sought a declaration that its Fair Dealing Guidelines complied with section 29 of the Act.

In 2017, ruled in favour of Access Copyright in all regards, claiming that the interim tariff is mandatory and that �첥��Ƶ’s Fair Dealing Guidelines and its actual practices are not fair under section 29. In 2020, the reversed the lower court’s decision on the tariff issue, finding that tariffs set by the Copyright Board are only applicable to those voluntarily under a licence with Access Copyright and therefore not mandatory. However, on the fair dealing issue, the Federal Court of Appeal found that the lower court did not make any “palpable and overriding errors” in conducting their fair dealing analysis. 

Issues at Appeal

The Supreme Court appeal considered two issues: 1) is the tariff mandatory? and 2) if the tariff is mandatory, are York’s Fair Dealing Guidelines “fair” such that their activities may be covered by section 29 fair dealing?

Access Copyright’s Non-Mandatory Interim Tariff

The Supreme Court upheld the Federal Court of Appeal’s reasoning on the tariffs issue, agreeing that the interim tariff is not mandatory and thus not enforceable against �첥��Ƶ. They affirmed that users are free to pursue alternative methods to lawfully copy works, such as acquiring transactional or site licences or relying on section 29 fair dealing. In their reasons, they drew heavily upon arguments made by Professor Ariel Katz at the University of Toronto Faculty of Law, who asserted that where a user makes an unauthorized use, the appropriate remedy is an action for infringement—one that Access Copyright lacks standing to initiate.

Considering the Ultimate User in Fair Dealing Analyses

Although the Court deemed it inappropriate to rule on fair dealing, given that this is not a copyright infringement suit, Justice Abella nonetheless provided helpful obiter on fair dealing in Canada. Namely, she clarified that the reasoning of both the Federal Court and Federal Court of Appeal on the fair dealing issue is not endorsed. Both lower courts erred in their evaluation of the purpose of the work, by only considering the institutional perspective. As Justice Abella discussed in multiple past decisions, including Alberta, the end-user perspective must also be considered when assessing the fairness of a dealing. In this case, but for the students, there would be no copying. Therefore, the judgement must consider the students’ perspective. The institutional purpose is not completely irrelevant, but it must be interpreted in light of the end-user. Here, Justice Abella found that educational institutions have no “ulterior or commercial purpose” when copying for their students’ benefit under fair dealing, even if the institutions benefit financially by saving funds. As the first discussion of the educational purpose of fair dealing since it was introduced during the , the Supreme Court clarifies that the appropriate way to assess an educational institution’s fair dealing practices is to determine whether those practices facilitate their students’ educational purposes in a fair manner, maintaining the balance between users’ and creators’ rights.

�첥��Ƶ adds to a growing list of copyright jurisprudence by the Supreme Court, many of which were spearheaded by the . This latest decision delivers several wins to the users’ rights community, particularly through confirming that users always have the choice to rely on section 29 fair dealing when working with copyright-protected materials. Educators and librarians across the country can breathe a sigh of relief that they may continue to lawfully offer their services, many of which rely on fair dealing, to the benefit of their students and patrons.

The post A Win for Users’ Rights: Supreme Court Finds Access Copyright Tariff Not Mandatory and End-User Perspective Must be Considered in Fair Dealing Analyses appeared first on IPOsgoode.

The Socratic teaching method gained popularity in the early 1900s due to its pedagogical advantages of teaching students to apply their knowledge critically by thinking on their feet; however, during the mid to late twentieth century, the method began to plateau and fall out of popularity. While there are many reasons that can be cited for this occurrence, the one that seems to be consistent is that .

One may look to how law school has changed over the years for an explanation: attendance is not forced; grading has become anonymized; and lectures are recorded enabling students to forgo the long commute and listen after the fact. These changes, along with the ever-increasing pool of distractions associated with the Internet, among other things, have resulted in the Socratic method being all but .

REDISCOVERING ANCIENT RUINS BURIED IN COPYRIGHT

A resurrection is possible, however. The question must turn to how educators can stimulate class preparation. One of the ways this can be accomplished is to proliferate standardized derivative works for students to leverage in their studies such as textbook abridgements, summaries, and video tutorials. This would enable students to more easily digest the historical iterations of the law in less time, and now at home in the wake of COVID. Standardization would ensure that no student has an upper hand.

One of the main inhibitors however is copyright law. In Canada, a “fair dealing” defence for derivative educational works is recognized under section 21 of the , “for the purpose of…education”. The work must also be “fair”, defined as a question of fact determined by six non-exhaustive criteria laid out in the landmark case of , [2004] 1 SCR 339. What this means is that professors, educators, and students who wish to create, sell or distribute helpful educational works risk copyright infringement, which seems to have been enough to prevent proliferation altogether.

One solution could be to wait until the owners of the original works – namely publishers – step up and begin to create derivative works. In the wake of COVID-19, publishers may very well respond to the increase in demand for online education with derivative works that can be leveraged by educators. However, I believe the better answer would be an online platform that holds the rights of the original works on behalf of creators (via a licence from a publisher) and allows them to create content without having to seek a license themselves. While this concept is largely unexplored, I hypothesize that creators will seek out works most in demand and begin creating and selling derivatives on the platform.

THE NEED FOR PRESERVATION VIA MODERN TECHNOLOGY & THE WAY FORWARD

As the law continues to iterate over time and the distractions of technology increase, the need to leverage that technology to better distill information to students is at all an all time high. Derivative educational works are a part of the answer. And while copyright creates some unique barriers, a unified platform with a business licensing strategy may be all that it takes to create the education of the future that the present has been desperately waiting for.

Written by Joseph Simile, a second year JD Candidate at Osgoode Hall Law School. Joseph is also the editor of the IP Law Journal.

The post What Happened to Socrates appeared first on IPOsgoode.

Expanding access to higher education has always been central to York’s mission. We know that our province and our country cannot afford to leave talent behind. When I talk to our students, I hear every day about the sacrifices they and their families make so they can go to university. ��Over 60 per cent of our students work part-time. They work hard because they and their families believe that York can unlock opportunity for them.

Delivering on that promise means we have to do things differently. To prepare students to enter a rapidly changing workforce, we’re focused on expanding experiential learning opportunities, where students connect their academic programs to real-world experience. We’re supporting student entrepreneurs and startups and connecting lifelong learning to the future skills needs of the economy.

As we prepare students to launch their careers, we need to make sure they have access to the services and support they need to excel in their studies. That is why we are so excited to partner with IBM to develop a new virtual assistant. The assistant provides students with advisory services designed to improve their university experiences by delivering both academic and personal guidance covering a wide range of topics in real-time. This is the first time that IBM AI technology has been used in this way at a Canadian university.

In the future, my hope is that we can explore how to better personalize learning in and out of the classroom.

The expectations placed on universities have never been higher or more complex. But through our partnership with IBM and our ongoing commitment to educational innovation, I am confident our graduates will have what they need to thrive in a challenging world.

Written by Rhonda Lenton,��President and Vice Chancellor, �첥��Ƶ.

This article was originally posted��.

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Earlier this September, the decision of the Delhi High Court in����[DU Photocopy] when Endlaw J. proclaimed that, “”,����of the US Court of Appeals for the Second Circuit. The well-reasoned ninety-four-page judgment held that the fair dealing exceptions encompass the right to create ‘course packs’ (a compilation of study materials from several books) and broadened the interpretation of the common-law principle of fair dealing.

The above suit was instituted right on the heels of��the Alberta decision (which was also quoted in the DU case) in which, in 2012, the SCC allowed teachers to distribute photocopies of study materials to their students under fair dealing (even before the inclusion of ‘education’ in s.29 by an amendment). In��DU Photocopy,��licensed agents were making photocopies for the students on behalf of their teachers.

The Delhi High Court judgment in��DU Photocopy��upholds the right to access of education under the fair dealing exception provided in Section 52(1)(i) of the Indian Act]. The Indian Act creates ‘education’ exceptions similar to its Canadian counterpart (especially in light of the 2012 amendments that included ‘education’ as an allowable fair dealing purpose).

Section 52(1)(i) allows for exceptions to copyright protection where there is:

i. “The reproduction of any work –

(i). By a teacher or a pupil in the course of instruction; or

(ii). As part of the questions to be answered in an examination; or

(iii). In answers to such questions;”

The Delhi High Court included the University within the ambit of the term ‘teacher’ while considering the licence for making course packs provided by Delhi University to the defendant. It clarified that if the University was not competing with the price fixed by the publisher, it would not amount to acting commercially. It also interpreted the term ‘in course of instruction’ broadly to include reproduction of work outside class during the entire academic year. This is similar to the broad approach Abella J. took when she allowed teachers to provide photocopied notes for the use of students in class in��Alberta.��In particular, she interpreted ‘private study’ not to mean studying in “splendid isolation”.

It was argued that instruction should only mean lectures and tutorials but the court refused this contention, stating that the legislature intended to broaden fair dealing by choosing to use ‘instruction’ instead of ‘lecture’.

However, publishers impleaded such a judgment would be a death knell to their business.[1] There is an instance of photocopying up to 33.8 per cent of the book (although the average of all books copied was��8.81 per cent, see to the petition). In all fairness, if we look at the approach taken by the SCC in��, the requirement under ‘amount of dealing’ is not met. In Canada, any dealing with more than 10 per cent of the work [2]. The DU Photocopy judgment remains silent on the amount of dealing.

The way out is to follow the reasonable nexus doctrine as suggested by��. In future, the courts must examine if there is a reasonable connection between the photocopying and the furtherance of educational instruction. If the prescribed text is not available (or priced at a prohibitively high level) then such a dealing may be considered fair.

As for the ‘death knell to publishing industry’ argument, it seems a bit far-fetched. Studies have suggested that the��. Also, 33 out of the 52 authors whose work was in question gave a ‘no objection’ to the course packs, which demonstrates that fair dealing does not necessarily impact scholarship.

The first copyright law in the UK, the Statute of Anne, 1710, described itself as “.” The concept of fair dealing evolved in the UK as a broad common law principle which was later, unfortunately, fettered to an exhaustive list that was later transcribed to Canada.

While other common law jurisdictions are increasingly seeing excessive copyright as detrimental to the right to access of education, it will be interesting to see how the Federal Court rules in����(which deals with the issue of whether the copyright practices at �첥��Ƶ fall under the fair dealing exception of the Copyright Act) now that��

The intellectual property world is watching with bated breath. Your move, Canada.

Prasang Shukla is an IPilogue Editor and an International Business Law LL.M. candidate at Osgoode Hall Law School.

[1] The Chancellor, Masters & Scholars of the University of Oxford & Ors v Rameshwari Photocopy & Anr, CS (OS) 2439/2012, at��12 at para (n).

��Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in Its Repertoire��(Copyright Bd.), online: , at para 288.

��

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While specifying which category of photocopying constitutes fair dealing, and thus a non-compensable copy under the Access Copyright K-12 tariff, the decision further clarifies the tariff and fair dealing implications regarding K-12 education in classrooms across the country.

In response to July’s Supreme Court of Canada decision in Access Copyright, which was discussed on IPOsgoode by as well as , the Copyright Board held “the decision of the Supreme Court is clear and leaves no room for interpretations”. At issue before the Copyright Board was whether photocopies of portions of works made at the teachers’ own initiative and distributed to students for instructional purposes, were compensable copies as part of Access Copyright’s Elementary and Secondary Schools Tariff applicable to the K-12 level. This category of photocopying included only short excerpts from textbooks which were distributed to students as a complement to other textbooks used by students. This copying, which accounts for approximately 7% of all copying done in schools (16.9 million pages of copying), has been referred to as Category 4 during the previous proceedings.

As summarized by Abella J in Access Copyright, prior to the Supreme Court’s decision, the Copyright Board “concluded that the Category 4 copies were made for the allowable purpose of “research or private study” under����of the��Act, but found, applying the��CCH��fairness factors, that the Category 4 copies did not constitute fair dealing and were therefore subject to a royalty.” On judicial review, the of the Copyright Board as reasonable. However, in light of the Supreme Court’s 5/4 decision in Access Copyright, the fair dealing matter was remitted to the Copyright Board for reconsideration based on a misapplication of the fairness factors.

Although the Copyright Board was given the task of re-applying the CCH fairness factors based on the majority’s reasons from July’s Supreme Court decision, the Copyright Board simply stated “based on the record before the Board and the findings of fact of the Supreme Court, Category 4 copies constitute fair dealing for an allowable purpose and as such, are non-compensable.” While Abella J did not specifically rule on the fair dealing of the Category 4 copies in Access Copyright, her applications of the CCH factors is perhaps what caused a reluctance on the part of the Copyright Board’s to re-apply the factors. The Copyright Board’s decision does clarify that fair dealing applies to Category 4 copies, photocopies of portions of works made at a teacher’s initiative and distributed as supplemental classroom material, are not applicable to the K-12 Tariff. Although disappointed by the ��Copyright Board’s decision, Access Copyright has the outcome of fair dealing applying to Category 4 copies.

It is interesting to note the deference of the Copyright Board to the majority’s decision in Access Copyright and the reluctance of the Board to re-apply the fairness factors enunciated in CCH. In July, the Supreme Court stated that the misapplication of the CCH factors by the Copyright Board was unreasonable and that the Board should reconsider whether Category 4 copies are subject to the K-12 Tariff. After reinforcing fair dealing as a user’s right, Abella J applied the CCH factors directly to the facts, weighing the factors in favour of fair dealing. In response to the Supreme Court’s decision, Access Copyright was of the opinion that the Copyright Board had the opportunity to determine that Category 4 copies did not constitute fair dealing, stating that there was no “”. Despite this argument, the Board declined to reassess whether Category 4 copies constituted fair dealing based on Access Copyright. The Copyright Board, in a perhaps begrudging tone, was of the opinion that the Supreme Court’s clear decision “leaves no room for interpretation”. Perhaps the Copyright Board did not want to offend the majority’s decision in Access Copyright? Perhaps the Board agrees with the Supreme Court’s decision? Or perhaps, simply put, the Board has had enough of the K-12 Tariff?

With strong deference to the majority’s reasoning in Access Copyright, the Copyright Board’s final issue is deciding whether the FTE (Full-Time Equivalent) student rate should be reduced to $0.36 or $0.3539.

The Copyright Board’s decision has created a controversy in the Canadian copyright community. Although the Board’s decision is applicable only to the K-12 tariff and Category 4 copies, it has rehashed the argument regarding the user’s rights and fair dealing language in July’s Access Copyright decision. A back and forth of blog entries has been fired off between , , , and a , regarding the application of fair dealing to the Access Copyright licence currently being proposed to various Canadian universities. Instead of keeping the debate focused on the implications of Access Copyright on Canada’s fair dealing doctrine and educational institutions, the discussion has and its accompanying “Hitler Finds Out” meme discussing the Access Copyright licence. and have been critical about the meme, expressing that (in the words of Sookman) this “reprehensible video should not have been circulated by a Canadian academic…”. However, , at least one of which has been previously , Western Professor , without controversy. As the meme is highly satirical in nature, those who claim the video “crossed the line” have undoubtedly missed the author of the video’s intended message. While the video may offend some in the Jewish community, the plethora of YouTube memes alludes to the fact that many members of the public find the meme to be an acceptable vehicle to disseminate a variety of messages.

In response to critics of his re-tweet, Ariel Katz apologized to those he may have offended and wishes to keep focused on “.” As Katz points out, the rhetoric regarding the meme and suggestion that those who support a liberal fair dealing doctrine associate themselves with Nazis, “is a new low in the debate. Hopefully, we have now hit rock bottom, and can return to discussing the real issues.” Indeed, let this not become the next , which focused on the language used by those who debated the issue, as opposed to focusing on the issues of substance to the debate. Let us return to debating the implications of Access Copyright, and not waste time with highly offensive name-calling.

Adam Jacobs is a JD candidate at Western University, Faculty of Law and is currently on exchange at Southwestern Law School in Los Angeles, California.

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After spending much (printer) ink on the two-step test for fair dealing that has been outlined in CCH Canadian Ltd. v. Law Society of Upper Canada, , the SCC ruled, in a very close 5-4 majority, that photocopies of short excerpts from books, made by teachers for students in elementary and secondary schools, should not be subject to an additional tariff.

This is because they come within the ambit of “fair dealing for the purposes of research or private study,” as outlined in of the Copyright Act, . Naturally, the decision has many ramifications for the textbook industry, as well as for authors, educational institutions, teachers and students. Both the majority and the minority were engaged mostly with determining what is “fair”, within the definition of the Act, as well as with respect to the facts of the case. Ultimately, ��the SCC decided in favour of users, firmly entrenching the soon to-be-famous adage that “fair dealing is a user’s right,” (at para. 22), quoting Society of Composers, Authors and Music Publishers of Canada��v.��Bell Canada, , covered by IP Osgoode .

On appeal from the Federal Court of Appeal (FCA), the facts of the case were simple enough: Access Copyright, a collective that licenses literary works, filed a tariff proposal with the Copyright Board stating that the photocopies made by teachers in elementary and secondary schools for their students did not constitute fair dealing, and therefore should be subject to royalty payments. The crux of the matter revolved around the second stage of the CCH test: the fairness analysis. The 5 factors from CCH were used to determine the concept of fairness within the context of the case: the purpose, character, amount of the dealing, existence of alternatives to the dealing, and the effect of the dealing on the work (at para. 12).

It is important to note, that the SCC did not make a general ruling as to what “fairness” entails, agreeing unanimously that this criterion was fact-specific. In this case, the facts supported a finding that the photocopying was fair, and the Court remitted the matter to the Copyright Board to whether a royalty really would be the best option in these circumstances. While we wait for the Board to make its decision on the tariff, here is a brief breakdown of the Court’s debate, and some personal thoughts on why the majority’s decision was a fitting one, in this case.

I. Purpose of the Dealing:

Justice Abella, writing for the majority, disagreed with the Board’s view with respect to three aspects: that the purpose of the dealing should centre around the teacher’s (or copier’s) perspective, that the purpose then became instruction (not research or private study), and finally, that the teacher became the facilitator of the dealing, and in doing so, made it unfair, since the teacher’s purpose (instruction) was separate from the allowable purpose of the students (research or private study).�� According to Justice Abella, the teacher’s purpose could not be separated from that of the students’, because the teacher would have no ulterior or commercial motive to replicate excerpts unless they were for the students themselves.

The majority also stated that it was incorrect for the Board to have deemed a student request for a photocopy as different from a teacher initiated one, since it was the teacher who had the expertise to know the most suitable material, and this was a part of the process of research and private study, rather than of just pure instruction. As far as the majority was concerned, the purpose is indistinguishable into categories of student versus teacher.

Justice Abella dealt another blow to the Board’s analysis when she determined that “private study,” as contained within the Act, could not have meant “requiring users to view copyrighted works in splendid isolation” (at para. 27). Rather, the term was supposed to have been interpreted conceptually (i.e. relating to one or a select group), than geographically.

Justice Rothstein, on the other hand, disagreed, along with the rest of the minority. Choosing to hierarchize the purposes, the justices deemed the teacher’s purpose to not only be relevant, but also, predominant in the fairness analysis. This was because efficient teaching tools – which include the photocopying of excerpts – are essential to the very nature of the job of teaching itself (at para. 43). The minority then deemed the purpose of the teacher to be crucial in the fairness analysis.

With respect to the interpretation of the words “private study,” Justice Rothstein pointed out that the inclusion of the word private in the act could inferentially mean that it was meant to distinguish private and non-private studies. In agreeing with the majority that studying and learning were "personal endeavours," he also noted that “words used by the legislator should be construed to give them some meaning” (para. 47).

The opposing viewpoints on the matter highlight an interesting component – that of voluntariness, on the part of the students. The Board wanted the SCC to consider the will of the final user – the student, as distinct from that of the copier – the teacher, the latter of who would presumably have a separate agenda from the student. However, I think this seems a trifle far-fetched; while it is true that the process of instruction is essential to teaching, it seems unlikely that the photocopying of excerpts from supplementary textbooks would enable a teacher to obtain any direct commercial gain.

On the question of whether this gain could be indirect, clarification is needed from the courts. For instance, would it matter if the schools in question were private or public institutions? In the former, a good teacher could mean higher salaries, and promotions, while in the latter, a teacher whose skills were enhanced by photocopying excerpts might gain less monetarily, but may gain through an enhanced reputation as a better teacher.

II. Amount and Character of the Dealing:

Once again, Justice Abella focused on the Board’s attempts to distinguish between the student and the teacher’s motives as being a false dichotomy, insisting instead on their unity. The majority viewed the amount as being essential to determine fairness, but entrenched it in the concept of proportionality.

The notion of whether it is fair to copy an excerpt depends on the proportion of the excerpt to the overall work, and not how much was actually copied in terms of the number of pages (quantity). The totality of all copying, according to the majority, is related to the character of the dealing, not the amount. By confusing the two, the Board removed the concept of proportionality from the analysis, which the majority found unacceptable.

Justice Rothstein and the minority, on the other hand, took a broader view of the “amount of the dealing” aspect, because the teachers, in his opinion, would return to the same textbooks to copy different excerpts, thereby increasing the overall proportion of copied work, making the practice unfair.

III. Existence of Alternatives to the Dealing:

In considering whether there were other reasonable alternatives to photocopying the excerpts, the majority found it unreasonable to expect schools to purchase every article that was useful in addition to textbooks. Basing its criteria on the “reasonably necessary aspect,” it differed from the minority by saying that, in the absence of other viable alternatives, photocopying excerpts was the best available course of action.

The minority was adamant to point out that just because there were no other viable alternatives, this did not make the copying fair (at para. 57).�� According to them, schools would have had to buy extra copies, and make them available to the public, thus solving the issue of photocopying.

IV. Effect of the Dealing on the Work:

The final criterion, according to the majority, considered whether photocopying would have had a negative impact on the commercial sales of the original materials, and whether this was enough to make a dent in the perceived or potential success of the original books. Both sets of justices were in agreement here— namely that there was a very slight chance, if any at all, that the photocopies would affect the market for the originals, since there was such a large gap between the number of photocopies being made, versus the textbooks sold.

The Court took into account the fact that there was no evidence specifically pointing to photocopying by teachers as a reason for the decline of sales and profits. Therefore, it was not prepared to consider declining sales as a direct or indirect effect of photocopying by teachers.

Implications:

The decision is a reminder to the Canadian public, lawyers and lower courts that fair dealing is here to stay in Canadian law, and must be given a broad interpretation (at para. 48). This has led to questioning whether the SCC has cast the net too broadly. Coupled with the recent changes to the Act through Bill C-11, the decision could potentially mean that a lot more can be included in the category of “education” than would have been previously done, and this might mean a lot more leeway will be given to users, when it comes to using materials. Access Copyright itself has insisted that it will keep pushing for the rights of the creators, and that the decision will .

While reading the decision, some other things come to mind as well. The case concerns the use of supplementary texts and their photocopying, and limits the use of its principles to small, short excerpts. Therefore, it seems that the SCC was quite aware that it would not deal a blow to the entire textbook industry, since in most cases, students will still buy the textbooks they need the most, as has always been the case. Further, in determining fairness, the SCC has not deviated from the CCH case at all, and to speculate, perhaps did so to stress to the lower courts that the application of those factors is crucial in all analysis of fair dealing.

Then, there is the question of whether the Board’s argument would have stood regarding copying of the excerpts by other users. For example, students themselves can now make the copies without the involvement of the teacher – a simple snap with an iPhone can do the trick. In such a case, would there even be the need to consider the facilitator’s purpose as anything other than that it might be to ensure students learn the material, since in this example, there is no facilitator at all? Simply put, the SCC’s eventual determination of a symbiotic purpose seems to be correct, because it gives future courts the option of either lumping in the teacher’s and students’ purposes together, or it eliminates the need for the former altogether. In my opinion, it makes for a less-complicated path in the recognition that fair dealing as, to truly be a user’s right, it must focus on the benefit to the end user.

The Court also draws a sharp line between users and creators in this category, and chooses the former over the latter. While this has no doubt been done to give fair dealing its dues in Canadian law, it also puts creators at a sizeable disadvantage. There is no precise definition of what constitutes a “short” excerpt, and future courts will have to rely on the amount, character and proportionality factors, combined with sizeable judicial discretion to determine whether it falls within the realm of fairness.

The ruling also puts authors in further danger of being inadequately compensated, because with even less dues being paid to the publishers, it leaves the authors with very little, thanks to the profit-making criteria of the publishing world.

The most positive thing, however, seems to be that the SCC has prevented a deviation in the understanding and purpose of the nature of learning, namely that is a constantly evolving, symbiotic process that is both private and public. . At the same time, the Board might have received its wish, albeit in an indirect way. By focusing on the purposes of the user and on the facilitator, the SCC has in fact prioritized the rights of the end user over anybody else’s, even the creator’s. Only time will tell what the overall impact on students’ education, and the educational publishing industry, will be.

Editor's note: The Supreme Court of Canada did not make a definitive ruling on the issue of fair dealing. Rather, the Court held that the Copyright Board's finding of unfairness was based on a misapplication of the fairness factors enunciated in��CCH Canadian Ltd. v. Law Society of Upper Canada.��The Court therefore remitted the case back to the Copyright Board for reconsideration as to whether photocopies made by teachers to distribute to students as part of class instruction at the primary and secondary level are subject to a tariff. �� See��Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),��2012 SCC 37 at paras. 37 - 38.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School.

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